18:0642(77)CA - Air Force, HQ 93rd Combat Support Group (SAC), Castle AFB, CA and NAGE Local R12-91 -- 1985 FLRAdec CA
[ v18 p642 ]
18:0642(77)CA
The decision of the Authority follows:
18 FLRA No. 77
DEPARTMENT OF THE AIR FORCE
HEADQUARTERS 93rd COMBAT
SUPPORT GROUP (SAC)
CASTLE AIR FORCE BASE, CALIFORNIA
Respondent
and
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R12-91
Charging Party
Case No. 9-CA-967
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding finding that the Respondent had engaged in
certain unfair labor practices and recommending that it be ordered to
cease and desist therefrom and take certain affirmative action. The
Judge further found that the Respondent had not engaged in certain other
alleged unfair labor practices and recommended dismissal of the
complaint with respect to them. Exceptions to the Judge's Decision were
filed by the Respondent, and the General Counsel filed cross-exceptions
to the Judge's Decision and an opposition to the Respondent's
exceptions.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (the Statute), the Authority has reviewed the rulings of the
Judge made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. Upon consideration of the
Judge's Decision and the entire record, the Authority hereby adopts the
Judge's findings, conclusions and recommendations, only to the extent
specifically referred to herein.
The Authority adopts the Judge's conclusion that the Respondent did
not, in the specific circumstances of this case, violate section
7116(a)(1) and (5) of the Statute, as alleged in the complaint, by
terminating a past practice without first negotiating at the request of
the Charging Party (the Union) concerning its decision. Thus, the
Authority agrees with the Judge's finding that, by virtue of the
parties' negotiated agreement, the Union waived any right it may have
had to bargain concerning the Respondent's decision to terminate the
parties' past practice of permitting children of employees of the
Respondent's Child Care Center to attend the Center without charge.
However, contrary to the Judge, the Authority finds that the
Respondent did not violate the Statute by failing to bargain with the
Union concerning the impact and/or implementation of that decision.
Thus, following notice from the Respondent that it intended to terminate
the practice of providing free child care for the children of Child Care
Center employees at the start of the new year, i.e., in about three
weeks, the Union met with the Respondent. The Respondent explained that
its decision was based upon the opinion of its Staff Judge Advocate that
the existing practice violated Air Force Regulations. The Union
persistently argued the inequities of the decision and requested that
the present practice be maintained, but the Respondent remained firm in
its decision. The Union asked that it be given a "firm date" as to the
implementation, a "clean copy" of the Staff Judge Advocate's memo on the
subject, and an opportunity to discuss the matter with the Base
Commander. The Respondent agreed to the first two of these requests,
but was silent as to the third. The Respondent subsequently implemented
the change with regard to withdrawal of free child care on the date
planned, consistent with its notice to the Union. The Union met with
the Base Commander thereafter; the Respondent's decision to change the
practice was further discussed but remained in place.
The Union did not, during these meetings, request to bargain about
the impact and/or implementation of the Respondent's change in past
practice, but insisted that such past practice remain unchanged. /1/
Moreover, the complaint does not allege a violation with regard to
impact or implementation. /2/ In these circumstances, the Authority
finds that it need not reach the question, as does the Judge, with
regard to impact and implementation. Therefore, the Authority shall
order that the complaint be dismissed.
ORDER
IT IS ORDERED that the complaint in Case No. 9-CA-967 be, and it
hereby is, dismissed in its entirety.
Issued, Washington, D.C., June 21, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
Lt. Col. Gordon B. Finley, Jr., Esq.
For the Respondent
Stefanie Arthur, Esq.
For the General Counsel
Peggy Whitaker
For the Charging Party
Before: WILLIAM NAIMARK, Administrative Law Judge
DECISION
Statement of the Case
Pursuant to a Complaint and Notice of Hearing issued on July 1, 1981
by the Regional Director for the Federal Labor Relations Authority, San
Francisco, California Region, a hearing was held before the undersigned
on August 19, 1981 at San Francisco, California.
This is a proceeding under the Federal Service Labor-Management
Relations Statute (herein called the Statute or the Act). It is based
on an amended charge filed on April 9, 1981 by National Association of
Government Employees, Local R12-91 (herein called the Union) against
Department of the Air Force, Headquarters 93rd Combat Support Group
(SAC), Castle Air Force Base, California (herein called the Respondent).
The Complaint alleged that on or about January 1, 1981 Respondent
abolished its practice of permitting children of employees of the Child
Care Center to attend the Center without payment; that this change was
effected prior to completion of bargaining with the Union-- all in
violation of Sections 7116(a)(1) and (5) of the Statute.
Respondent filed an answer on July 17, 1981 which denied the
essential allegations in the Complaint as well as the commission of any
unfair labor practices.
All parties were represented at the hearing. Each was afforded full
opportunity to be heard, to adduce evidence, and to examine as well as
cross-examine witnesses. Thereafter, briefs were filed with the
undersigned which have been duly considered. /3/
Upon the entire record herein, from my observation of the witnesses
and their demeanor, and from all of the testimony and evidence adduced
at the hearing, I make the following findings and conclusions:
Findings of Fact
1. At all times material herein the Union has been, and still is the
collective bargaining representative of all non-appropriated fund
employees at Castle Air Force Base, California.
2. A non-appropriated fund is a self-sustaining organization which
operates from the profit made on the base derived from stores, snack
bars and some appointed fund monies. Child care is a non-appropriated
fund activity.
3. Both the Union and Respondent are parties to a written collective
bargaining agreement which was executed on January 16, 1975 and is still
in effect. The said agreement provides in Article II, "MATTERS FOR
CONSULTATION AND AGREEMENT", the following:
Section 1. It is agreed that matters appropriate for
consultation and negotiation between the parties are policies and
practices related to working conditions which are within the
discretion of the Employer including, but not limited to such
matters as safety, training, labor-management cooperation,
employee services, methods of adjusting grievances, granting of
leave, promotion plans, demotion practices, reduction-in-force
practices, and hours of work.
Section 2. It is agreed that the fact that certain conditions
are reduced to writing does not alleviate the responsibility of
either party to meet with the other to discuss and consult on
appropriate matters not originally covered in this Agreement.
Section 3. It is further agreed and understood that any prior
benefits and practices and understandings which have been mutually
acceptable to the Employer and the Union, but which are not
specifically covered by this Agreement may be changed by the
Employer. If the Union requests, consultations on such changes
will be held with the General Manager.
4. Respondent operates a Child Care Center under the Morale, Welfare
and Recreation (MWR) Division at the Base. Between 1960 and 1980 a
practice existed whereby children of employees of this Center were
permitted to attend free of charge while the employee-parent was at
work.
5. In a memorandum dated December 2, 1980 /4/ Lt. Colonel David L.
Roberts, Chief of the MWR Division, notified Child Care Center Director
Lois McGee that a change in the aforesaid practice should be made.
Roberts stated that, based on a memo from the Staff Judge Advocate's
Office, it was determined that nursery employees at the Center should
not be allowed to care for their own children thereat without paying the
usual child care fee. A copy of the Staff Judge Advocate's memo was
attached to Roberts' memorandum. McGee testified she received the said
documents prior to December 10.
6. The Staff Judge Advocate's memo was dated September 10 and signed
by Captain Larry J. Olson, Chief, Civil Law. It stated that Olson
concluded the nursery employees at the Center should not be allowed to
care for their children thereat without paying usual child care fees.
He based his conclusion on AFR 34-3, Volume III, paragraph 4-10, which
provides:
"Welfare funds may be used to provide child care services at no
cost to volunteers when they serve the Air Force Community,
provided payment is not made to the volunteers. If the base child
care center is operated as a welfare fund entity, income is
credited to the center and expensed to the using activity (such as
family services)."
Olson declared that this Regulation shows an intent to provide child
care services only to children of volunteers and not to compensated
employees. He also referred to Air Force Regulation 215-1, Volume VI,
paragraph 5-1(b), which establishes the ratio of children to staff
permitted at Child Care Centers. Thus, Olson stated, allowing children
of employees to attend without charge affects the Center's capacity to
accept children of paying parents. Moreover, the floor space required
per child is set forth in AFR 215-1, Vol. VI, paragraph 8-1(a).
7. Air Force Regulation 215-1, 4(d) provides, in substance, that no
one, including MWR assigned personnel and employees, is authorized
discounts on MWR merchandise, services, or fees, unless authorized by
Air Force 215 series publications.
FPM Supplement 532-2 in Subchapter S1-3(b)(1) provides:
"There will be equal pay for substantially equal work for all
prevailing rate employees who are working under similar conditions
of employment in all agencies within the same local wage area."
8. McGee spoke to the Child Care Center employees on December 7, and
she informed them of the impending changes regarding paying for the care
of their children at the Center. The Director also told the employees
that possibly it would be effective the first of the year.
9. On December 8 McGee telephoned Frank Luzania, president of the
Union, and inquired whether he was aware that Respondent was about to
change its practice of not charging for child care of employees'
children. Luzania asked what the practice had been, and the Director
explained it to him. Whereupon the union official said he wanted to
talk to her and the employees. Luzania visited McGee at the Center that
day and the Director explained the past practice again as well as the
contemplated change to be effective about January 1, 1981. The record
also reflects that McGee showed him the memo from Roberts, dated
December 2, 1980, which was posted on the bulletin board. Luzania
testified there was no writing on the memo and it was unsigned.
10. Record facts reveal that on December 5 Judith Newman, NAP
Personnel Coordinator at the base, received a memo from Roberts asking
her to set up a meeting between the Respondent and the Union to discuss
proposed changed regarding child care. Newman telephoned Luzania on
December 10 /5/ and requested he visit her. Whereupon the Union
president met with the Coordinator and the latter explained the proposed
changes regarding child care. Luzania was given a copy of the Staff
Judge Advocate's memo, and a meeting was set up for December 12 to
discuss the matter with Colonel Roberts.
11. On December 12 union president Luzania met with Colonel Roberts
and Personnel Coordinator Newman. Upon being asked for his opinion
regarding the planned change, Luzania replied it was unfair; that the
Staff Judge Advocate's memo merely referred to volunteers not being
required to pay for child care at the Center and it didn't recite that
employees had to pay for such care; and that no compelling need existed
for the change. Roberts stated that under the law children of employees
could not receive free care; that the present practice to the contrary
was unlawful and had to be changed. The union president inquired when
it would take effect, and Roberts replied it would probably be about
January 1, 1981. Luzania asked the colonel to let him know as to a firm
date, and he also expressed a desire to speak to Commander Anderson.
The union president made no counter proposals, but insisted that
management should maintain the present practice regarding child care.
Then Roberts stated it must be revised. Luzania said he would hate to
file an unfair labor practice charge. Colonel Roberts agreed, however,
to advise the union official as to the firm date. He also gave Luzania
a copy of the Staff Judge Advocate's memo, but promised to furnish him
with a clearer copy later on. The record indicates Roberts never
contacted Luzania regarding a firm date for the implementation of the
change. Neither did he furnish the union agent with a clear copy of the
aforesaid memo, nor was any meeting arranged with Base Commander
Anderson prior to the change.
12. On December 16 Director McGee posted the December 2 memo, which
she received from Colonel Roberts, for the attention of the employees.
At the bottom of said memo she wrote the following:
"Child care fees for employees children will take effect Jan.
4, 1981."
13. The change in allowing employee's children free care was
effected on January 1, 1981. Luzania learned about it when he
telephoned McGee on January 2, 1981.
14. On February 2, 1981 a meeting was held between the parties to
discuss the change. Commander Anderson and Newman attended, and the
union was represented by Luzania and national representative Frank
Benites. Anderson suggested reimbursing employees for child care
expenses paid during January, as well as deferring the new plan for 30
or 60 days. Benites would not accept this proposal, and he indicated
the parties were in basic disagreement.
Conclusions
The principal issues for determination as framed herein are as
follows: (1) whether the Union waived its right to bargain over the
decision to change the past practice regarding child care for employee's
children by virtue of the written contract between the parties; (2)
assuming arguendo, Respondent has an obligation to bargain with respect
to the impact and implementation of the change, whether it satisfied
this duty by proper notification to the Union and meeting with the
bargaining representative in respect thereto.
(1) General Counsel insists that the Union herein was entitled to
bargain over the decision by Respondent to change its practice of
providing free child care to employees' children. It contends that the
subject of child care is a negotiable one, and that the Union never
waived its right in that regard under the collective bargaining
agreement.
The Authority has had occasion to consider the question as to whether
the establishment of child care facilities is a bargainable matter. In
American Federation of Government Employees, AFL-CIO, Local 32 and
Office of Personnel Management, 6 FLRA No. 76 the union therein proposed
that "management shall establish free daycare facilities for the
children of OPM employees." It was held that such a proposal was a
condition of employment and a negotiable subject. Further, the
Authority rejected the agency's defense that the proposal interfered
with the right of the agency to determine its budget under Section
7106(a)(1) of the Statute. Thus, I agree that the subject of free child
care for children of Respondent's employees is itself a bargainable
matter.
In asserting no waiver existed herein and that the employer was
required to bargain with the Union regarding the substance of the change
in free child care, General Counsel relies heavily on the decision in
Department of the Air Force, Scott Air Force Base, Illinois, 5 FLRA No.
2. The Authority therein emphasized that a party may not unilaterally
change existing conditions of employment during the contract term
without affording the bargaining representative notice of the change and
an opportunity to negotiate unless the representative had clearly and
unmistakably waived its bargaining rights. In the cited case the
employer, who changed its duty hours for employees, contended that the
union had waived its right to bargain over such change pursuant to
certain contractual provisions. It was provided on the agreement that
when a change of such nature was made by the employer, the latter would
notify the bargaining agent at least 14 days in advance, and that the
change would continue for at least two pay periods. It was held that
such language does not show a clear waiver of the right to bargain
regarding a change in duty hours. Moreover, the Authority declared that
a waiver will not be found from the fact that an agreement omits
specific reference to a right, or that a labor organization has failed
in negotiations to obtain protection with respect to certain of its
rights. cf. NASA Kennedy Space Center, Florida, A/SLMR No. 223.
In the case at bar Article II, Section 3 of the agreement between the
parties provides, in substance, that any prior benefits and practices
mutually acceptable, which are not covered by the agreement, "may be
changed by the Employer". Further, if the Union requests, consultation
on such changes will be held with the General Manager. The General
Counsel contends that nothing in this language obviates the necessity
for Respondent to give advance notice to the Union of the proposed
change and afford the representative an opportunity to bargain regarding
the decision to effect the change.
As reflected in the cases cited, supra, a waiver of any bargaining
right must be clear and not left to inference. No such waiver will be
found in the absence of express language to that effect. While General
Counsel argues that no waiver was spelled out in Article II, Section 3
of the contract herein, I disagree. The clause clearly stated that
practices not covered by the agreement may be changed by the employer.
It is not ambiguous, nor are its terms subject to differing
interpretations. It affords the Respondent the right to alter such
practices without bargaining as to the decision in regard thereto. The
contractual language under discussion herein is quite distinguishable
from that found in the Scott Air Force case. The unqualified right was
assigned the employer therein to change the duty hours. The agreement
merely bespoke of management's obligations when duty hours were changed.
In the case at bar the right to change certain established practices is
granted to management. Thus, I conclude that, under Article II, Section
3, the Union has waived its right to bargain as to the decision to
change the practice regarding free child care for employees' children.
/6/
(2) It is now well established in the public sector that although an
agency may have no obligation to bargain on a particular management
decision, the bargaining representative must be afforded an opportunity
to bargain as to the impact and implementation of such decision.
Department of the Air Force, Malmstrom Air Force Base, Montana, 2 FLRA
No. 2; Federal Railroad Administration, A/SLMR No. 418. Respondent
herein contends that, based on its discussion and meetings with Union
representative Luzania, it has met this obligation; that by virtue of
the said discussions an impasse was reached between the parties; and
that the employer was therefore at liberty to effectuate the change in
child care practice at the base. /7/
In order to satisfy the requirement of bargaining in good faith,
management must meet with a union, exchange views, and consider
proposals or counter-proposals advanced by the exclusive representative.
As stated in Federal Railroad Administration, supra, the right to
engage in a dialogue becomes meaningful only when reasonable notice is
afforded the union, and ample opportunity is granted it to explore
freely the matters involved prior to taking action. An employer must
demonstrate, in order to comply with its duty in this regard, that it
has discussed the issue at hand with an open mind and engaged in a "give
and take" relationship. Limited discussions with no attempt to reach an
agreement is not bargaining. See Internal Revenue Service and
Brookhaven Service Center, IRS, 4 FLRA No. 30.
Upon reviewing the entire record, I am persuaded that Respondent
herein did not fulfill its obligation to bargain with the Union
regarding the impact and implementation of the change in respect to free
child care. At the outset, and before she informed Union representative
Luzania, Director McGee addressed the employees and told them of the
planned change in the past practice. The employees were advised it
would occur about the first of the year. Although a meeting was held,
at Luzania's request, with Colonel Roberts on December 12 to discuss the
proposed elimination of free care for employees' children, I am not
convinced management bargained thereat in good faith as to the impact
and implementation of the change. While the Union official protested
the contemplated action and asked Roberts for a meeting with Commander
Anderson, no such meeting was arranged before the change was effected.
Further, at their meeting Roberts promised to inform Luzania as to the
firm date for the implementation, as well as furnish the Union with a
clear copy of the Staff Judge Advocate's memo. Neither was done. In
The Adjutant General's Office, Puerto Rico Air National Guard, 3 FLRA
No. 55, the Activity failed to respond, as promised, to certain requests
made by the union at the meeting between the parties. It was held that
a statement by the employer promising their responses created the
impression that management would consider proposals regarding impact and
implementation. Failure to respond precluded the labor organization
from considering the options of presenting alternative proposals. Under
those circumstances, the Authority concluded the Activity did not
fulfill its duty to bargain regarding impact and implementation.
It is essential that management, in meeting with the exclusive
representatives, retain an open mind and intend to bargain regarding the
effect of, and procedures involved in, any contemplated action.
Respondent's conduct herein belied any such intention. Apart from never
responding to Luzania after the meeting on December 12-- and prior to
implementing the change-- management failed to grant the union agent's
request to meet with the Commander to discuss the matter further. /8/
The Union was foreclosed from making any suggestions as to the
implementation of the change, and the conduct of Respondent's officials
implied that its action was irreversible and the matter was
non-bargainable. The discussions held with Luzania, as I view them,
were merely to notify him of the proposed change and explain the
necessity therefor. While Respondent argues that the Union made no
proposals at the December 12 meeting, I do not subscribe to the position
that no further duty devolved upon the employer. Even though the
request regarding the decision concerning free child care was not
negotiable, Respondent was still obliged to bargain in good faith as to
impact and implementation. No further request specifically tailored to
impact and implementation was necessary since management precluded and
aborted any discussions thereon. The general request by Luzania, under
the circumstances, sufficed to impose the duty to bargain with respect
thereto. See The Adjutant General's Office, Puerto Rico Air National
Guard, supra. I am constrained to find, moreover, that Respondent
breached that duty as to impact and implementation and violated Sections
7116(a)(1) and (5) of the Statute.
In respect to the remedy recommended herein, the General Counsel
requests a return to the status quo ante practice regarding free child
care. An issue is thus posed whether, apart from the appropriateness of
such remedy, a return to the original practice pending impact bargaining
would be improper based on the defense of illegality. A reading of the
Air Force Regulations involved herein persuades me that they are
insufficient as a defense to Respondent's obligation to bargain on the
impact and implementation of the change herein. Thus, AFR 34-3 does not
proscribe free child care for employees' children, and I do not deem its
reference to volunteers as mandating such proscription. Without some
express prohibition in this regard, or language clearly warranting such
an inference, it cannot be said that extending free care to children of
employees is illegal. Neither do I construe AFR 215-1, paragraph 4(c)
as forbidding such free care. This particular regulation, while
disallowing discounts on merchandise and services, evinces no clear
intention to prohibit free child care to employees' children. By the
same token I do not consider FPM S1-3(b)(1) as outlawing such service.
This provision, stating that there will be equal pay for substantially
equal work for employees does not address itself to the issue at hand.
It cannot be concluded that such regulation attempted to cover the
subject of child care. The language therein purports to deal with basic
pay for coequal services rendered during employment. Thus I reject any
contention that the regulations adverted to by Respondent should serve
as a defense to a status quo ante remedy herein. /9/ See Department of
the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 5 FLRA
No. 48.
In accord with the contention of General Counsel, I agree that the
remedy of status quo ante is proper in the case at bar. No serious
disruption would ensue as a result of returning to the original practice
pending bargaining on impact and implementation. Respondent adverts to
possible distrust and contempt among Air Force personnel for MWR
activities, as well as skewing wage rates of employees, whose children
have free care to other employees not receiving such benefits. Such
effects are either speculative in nature, or inappropriately raised as
creating a hardship or serious disturbance to Respondent's operations.
Norfolk Naval Shipyard, Portsmouth, Virginia, 6 FLRA No. 22; San
Antonio Air Logistics Center, Kelly Air Force Base, 5 FLRA No. 22.
Moreover, I consider that restoring the practice, which existed prior to
January 1, 1981 in respect to child care for employees' children, is
necessary to redress the failure by Respondent to bargain regarding the
adverse effects of the changes and the implementation thereof. /10/
Having concluded that Respondent has violated Sections 7116(a)(1) and
(5) of the Act, I recommend the Authority issue the following:
ORDER
Pursuant to Section 2423.20 of the Federal Labor Relations
Authority's Rules and Regulations, and Section 7118 of the Statute, it
is hereby ordered that the Department of the Air Force, Headquarters
93rd Combat Support Group (SAC), Castle Air Force Base, California,
shall:
1. Cease and desist from:
(a) Instituting any change in the past practice of providing
free child care to the children of its Child Care Center
employees, without first notifying National Association of
Government Employees, Local R12-91, the exclusive representative
of such employees, and affording it the opportunity to negotiate,
to the extent consonant with law and regulation concerning the
impact and implementation of such change.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of their
rights assured by the Federal Service Labor-Management Relations
Statute.
2. Take the following affirmative actions in order to effectuate the
purposes and policies of the Statute:
(a) Rescind the change in the past practice of providing free
child care to children of its Child Care Center employees
represented by National Association of Government Employees, Local
R12-91.
(b) Reimburse to those employees of the Child Care Center all
monies charged and collected since January 1, 1981 for the care of
the children of its employees represented by National Association
of Government Employees, Local R12-91.
(c) Notify the National Association of Government Employees,
Local R12-91, the exclusive representative of its Child Care
Center employees, of any intention to change its past practice of
providing free child care to the children of its Child Care Center
employees, and, upon request, negotiate in good faith, to the
extent consonant with law and regulation, concerning the impact
and implementation of such change.
(d) Post at its facility at Headquarters 93rd Combat Support
Group (SAC), Castle Air Force Base, California, copies of the
attached notice marked "Appendix" on forms to be furnished by the
Federal Labor Relations Authority. Upon receipt of such forms,
they shall be signed by the Commander of the Headquarters 93rd
Combat Support Group (SAC), and shall be posted and maintained by
him for 60 consecutive days thereafter in conspicuous places,
including all bulletin boards and places where notices to
employees are customarily posted. Reasonable steps shall be taken
by the Commander to insure that such notices are not altered,
defaced or covered by any other material.
(e) Pursuant to Section 2423.20 of the Authority's Rules and
Regulations, notify the Regional Director, Region IX, Federal
Labor Relations Authority, in writing, within 30 days from the
date of this Order, as to what steps have been taken to comply
herewith.
WILLIAM NAIMARK
Administrative Law Judge
Dated: May 20, 1982
Washington, D.C.
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
STATUTE WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT institute any change in the past practice of providing
free child care to the children of its Child Care Center employees,
without first notifying National Association of Government Employees,
Local R12-91, the exclusive representative of such employees, and
affording it the opportunity to negotiate, to the extent consonant with
law and regulation concerning the impact and implementation of such
change.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce our employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL rescind the change in the past practice of providing free
child care to children of our Child Care Center employees represented by
National Association of Government Employees, Local R12-91.
WE WILL reimburse to those employees of the Child Care Center all
monies charged and collected since January 1, 1981 for the care of the
children of our employees represented by National Association of
Government Employees, Local R12-91.
WE WILL notify the National Association of Government Employees,
Local R12-91, the exclusive representative of our Child Care Center
employees, of any intention to change our past practice of providing
free child care to the children of our Child Care Center employees, and,
upon request, negotiate in good faith, to the extent consonant with law
and regulation, concerning the impact and implementation of such change.
(Agency or Activity)
Dated: By: (Signature)
This Notice must remain posted for 60 consecutive days from the date
of posting and must not be altered, defaced or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with any of its provisions, they may communicate directly with the
Regional Director of the Federal Labor Relations Authority, Region 9,
whose address is: 530 Bush Street, Suite 542, San Francisco, CA, 94108,
and whose telephone number is: (415) 556-8105.
--------------- FOOTNOTES$ ---------------
/1/ See Internal Revenue Service (IRS) and Brooklyn District Office,
IRS, 2 FLRA 587, 589 (1980) wherein the Authority held that where a
union is fully aware of impending action in sufficient time to demand
bargaining, the union is obligated to request negotiations in order to
give rise to an obligation to bargain.
/2/ The complaint states only that the Respondent advised the Union
that it intended to abolish the practice of free child care, that the
change in practice was thereafter implemented, and that the Respondent
thereby refused to bargain in good faith regarding a change in terms and
conditions of employment.
/3/ Subsequent to the filing of its brief, the General Counsel filed
a Motion to Correct Transcript. The Motion is granted and the
transcript is corrected as set forth in the amended document marked
Attachment A.
/4/ All dates hereinafter mentioned occur in 1980 unless otherwise
indicated.
/5/ Newman attempted to reach the union official upon receiving the
memo from Roberts, but could not reach Luzania until this date.
/6/ Despite the waiver of its right to bargain regarding the
substance of the change in the practice established herein, the Union
was entitled to consultation under said section of the agreement. Using
Section 7117(d)(2) of the Statute as a guide, management is thus
required to inform the bargaining agent of the substantive change, as
well as allow it to present its views and recommendations. I am
persuaded that Respondent has satisfied its obligation in this regard.
It notified the Union representative Luzania on December 8-- three weeks
before it implemented the change-- as to its intention regarding
modifying free child care service. Further, the Respondent's officials
met on three occasions with Luzania. At these times the change was
explained to the union agent and management stated its reasons therefor.
Luzania was shown a copy of the Staff Judge Advocate's memo, and
Colonel Roberts agreed to advise him of the firm date for
implementation.
/7/ Respondent also contended that both agency and Government-wide
regulations mandated the change, and that it would have been illegal to
continue free child care for employees' children. The parties addressed
the question of illegality in their briefs, as well as the issues of
whether "compelling need" existed for the change and if it's
determinable in this proceeding. Since I conclude Respondent was
privileged to make the change under the contract herein, the issue of
illegality is academic with respect thereto.
/8/ The record does disclose that a meeting was convened with
Commander Anderson on February 2, 1981. However, as this was subsequent
to implementing the change, it would not affect a determination as to
whether Respondent bargained in good faith prior thereto.
/9/ Having found that the regulations, Air Force and Government-wide,
serve as no defense herein, the questions of "compelling need" is not
determined.
/10/ See and compare Federal Correctional Institution, 8 FLRA No.
111.